Posts

Pleading the Doctrine of Equivalents - Facebook Ireland v Voxer IP

Image
Jane Lambert Patents Court (Lord Justice Birss) Facebook Ireland Ltd v Voxer IP LLC [2021] EWHC 657 (Pat) (19 March 2021) In    Eli Lilly v Actavis UK Ltd and others     [2017] Bus LR 1731, [2017] UKSC 48, [2017] RPC 21, the Supreme Court changed the way the courts decide whether a patent claim has been infringed. I discussed that judgment in detail in    The Supreme Court's Judgment in Eli Lilly v Actavis UK Ltd and Others: how to understand it and why it is important   13 July 2017. Up to that judgment a patent could be infringed only if a variant fell within the language of a claim. Lord Neuberger referred to that as a "normal construction". After that judgment a patent could be infringed if the variant operated in a manner that was equivalent to the claim.  This was referred to in that case and subsequently as the "doctrine of equivalents". The issue before Lord Justice Birss in  Facebook Ireland Ltd v Voxer IP LLC [2021] EWHC 657 was whether the doctrine

Snatching Defeat from the Jaws of Victory - Neurim Pharmaceuticals v Mylan

Image
Ebenezer Scrooge and Marley's Ghost Jane Lambert Patents Court (Mr Justice Matcus Smith) Neurim Pharmaceuticals (1991) Ltd and Another v Generics UK Ltd (t/a Mylan) and anothe r  [2021] EWHC 530 (Pat) (12 March 2021) This was an action by Neurim Pharmaceuticals (1991) Ltd   ("Neurim")   the proprietor of European patent (UK) 1 441 702 B1   and Flynn Pharma Ltd ("Flynn"), its purported exclusive licensee, to restrain the infringement of that patent by Generics UK Ltd. and Mylan UK Healthcare Ltd. There was also a counterclaim by the defendants (referred to jointly as "Mylan") for the revocation of the patent on grounds of anticipation, obviousness and insufficiency.  This action and counterclaim came on for trial before Mr Justice Marcus Smith between 29 Oct and 5 Nov 2020.  At first, Neurim was victorious.   By para [148] of his judgment in  Neurim Pharmaceuticals (1991) Ltd and another v Generics UK Ltd and another [2020] EWHC 3270 which he delivere

The Patent Waiver Debate

Image
Jane Lambert There has been a passionate debate about the rôle of intellectual property ("IP") in producing and distributing vaccines against COVID 19 in low and mid-income countries. In a  communication to the Council of TRIPS dated 2 Oct 2020  (IP/C/W/669), the Indian and South African governments proposed relaxing some of the treaty obligations that require countries to protect the intellectual assets of their own and other countries' nationals. As a citizen, I have my views on that issue but in this article, I write only as a lawyer who has spent the better part of a lifetime advising and representing businesses and individuals on IP.   The Patent Waiver Proposal The proposal had gathered support from the governments of other low and mid-income countries, the former President of the Republic of Ireland and  Chair of the Elders ,  Mary Robinson  and  Baroness Chakrabarti.  the former shadow Attorney-General. and from the non-governmental organization  Médecins Sans Fro

The Inquiry - FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd.

Image
Grooves on a Vinyl LP Record Author Evan-Amo s Licenc e Public Domain Source Wikimedia Commons V   Jane Lambert Intellectual Property Enterprise Court (Ian Karet)  FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd   [2021] EWHC 932 (IPEC) (20 April 2021) In  FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd and another [2019] EWHC 829 (IPEC) (2 April 2019), Judge Hacon held that Let Them Eat Vinyl Distribution Ltd ("LTEV") had infringed FBT Productrions LLC's copyright in Eminem's album Infinite ("the Work") . I discussed that decision in  Copyright - FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd and Another   on 1 May 2019. S.97 (2) of the Copyright, Designs and Patents Act 1988 provides that in an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise, is available to the claimant as is available in respect of the infringement of any other property right. This was an inqui

Patents: Philip Morris v RAI

Image
Author SimonDes   Licence CC BY-SA 4.0 Source Wikimedia Commons   Jane Lambert Patents Court (Mr Justice Meade) Philip Morris Products, SA and another v RAI Strategic Holdings, Inc and another [2021] EWHC 537 (Pat) (9 March 2021) This was an action for revocation of  European Patent (UK) 3 398 460 B1  ("460") and European Patent (UK) 3 491 944 B1 ("944") and a counterclaim for infringement by the products shown above. The action and counterclaim came on for trial before Mr Jutrice Meade between 5 and 12 Feb 2021. At  para [223] of his judgment in Philip Morris Products, SA and another r v RAI Strategic Holdings, Inc and another [2021] EWHC 537 (which he handed down on 9 March 2021, the learned judge held that the patents were invalid for added matter and obviousness but had the patents been valid they would have been infringed. The Inventions Both patents are divisionals  from PCT Application WO 2008/108889  for a tobacco-containing smoking article.  The jud

The Appeal: Warner Music UK Ltd and others v Tuneii Inc

Image
The Internet Messenger Author   Buky Schwartz   Licence CC BY-2,5   Source  Wikimedia Commons   Jane Lambert Court of Appeal (Sir Geoffrey Vos MR, Lady Justice Rose and Lord Justice Arnold)  Warner Music UK Ltd and others v TuneIn Inc ,    [2021] EWCA Civ 441 (26 March 2021) This was an appeal by Tunein Inc. against Mr Justice Birss judgment in Warner Music UK Ltd and others v TuneIn Inc [2019] EWHC 2923 (Ch) (1 Nov 2019) which I discussed in  Copyright - Warner Music UK Ltd and Others v TuneIn Inc.   4 Nov 2019.  The claimants, who between them, account for more than half of the market for digital sales of recorded music in the UK and about 43% globally, sued Tunein Ltd for copyright infringement. TuneIn does not collect, transmit or store any third party audio content but it does connect users to third party radio stations' streams and earns money from advertising and subscriptions.  Mr Justice Birss found that TuneIn had infringed the claimants' copyrights by communicating